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Holding Court with Joan Biskupic

Holding Court
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Friday, March 17, 2000; 11 a.m. EST

The confirmation on March 9 of two fiercely contested judicial nominees threw into relief one of the clearest examples of tension between the president and the Senate: judicial appointments. Judicial nominees are a major issue for presidential candidates, and will continue to be throughout the campaign, and Vice President Al Gore and Texas Gov. George W. Bush will have to either name potential nominees or describe characteristics of a desirable judge.

But regardless of the nominee, any president faces a possibly long fight and tough opposition in the Senate. Richard A. Paez, who was confirmed to the 9th U.S. Circuit Court of Appeals, waited longer for the nod than any other judicial nominee in American history. He was nominated in January 1996.

Who are on Gore's and Bush's short lists? Will either of them face the same hurdles as President Clinton in getting their nominations confirmed? And how have Clinton's appointments fared in office? This week, "Holding Court" looks at the politics of judicial nominations and how the process could change with a new president.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EST. The transcript follows:

Joan Biskupic: Welcome. Now that we're down to two leading front-runners, Al Gore and George W. Bush, it's a good time to focus on differences between the two, in terms of Supreme Court appointments. Whoever wins the White House is likely to name one or two justices in a first term. And on a narrowly divided nine-member court, a single new justice could make all the difference on issues such as abortion, school prayer and the division of power between the federal government and states. .... It's also a good time to take stock of Clinton's appointments. Overall, they're a centrist, pragmatic lot, not as liberal as Jimmy Carter's appointees and obviously a lot farther from the vigorous conservatives named by Ronald Reagan, and in some cases, George Bush.

washingtonpost.com: From what you've seen and heard, who are your guesses for the judicial nominee short lists of Vice President Gore and Gov. Bush?

Joan Biskupic: That's always the big question. I'll mention names that have been circulating, but with this caveat: Everything will depend on White House politics (what constituencies need to be rewarded at the time) and what's going on in the country. I'm reminded of the illegal nanny and tax debate that sunk Zoe Baird for AG in Clinton's first term and then kept some possible judicial nominees out of the ring. Ruth Bader Ginsburg, who was nominated that year (1993) for the court, happens to be married to a tax lawyer who kept excellent records. Obviously, this women's rights advocate was not chosen for the family bookkeeping, but at least it didn't hang up the nomination.

Here are some of the current names, according to conventional wisdom: On the GOP side, 5th Cir. Judge Edith Jones; 4th Cir. Judge J. Michael Luttig; 7th Cir. Judge Frank Easterbrook; 9th Cir. Judge. Alex Kozinski; 5th Cir. Judge Emilio Garza – all are Reagan or Bush appointees and all have very conservative reputations.

On the Dem side, some leading guesses are David Tatel, on the D.C. Circuit; Jose Cabranes, from the 2nd Cir., and Martha Craig Daughtrey, on the 6th Cir. – all Clinton appointees. Daughtrey might be a local favorite if Gore wins. She's from Nashville and went to Vanderbilt.

New York, N.Y.: I found it amazing that one of Clinton's judicial nominations was held up for FOUR YEARS. I know opposition senators hold up nominations to make a point, but is there no recourse for pushing a nomination through?

Joan Biskupic: You're referring to Richard Paez, who had been bitterly opposed by GOP conservatives. Under Senate rules, a single senator can hold up a vote. And even after the four years, Sen. Jeff Sessions (R-Ala.) tried to further delay the vote last week... Paez, a former poverty lawyer who was a trial lawyer in L.A., was attacked as being too liberal. He'd been selected for a seat on the California-based 9th Circuit, a bench that itself is under constant criticism by conservatives. Paez ended up getting through (by a vote of 59-39), in part because the White HOuse moved on some other nominees favored by the GOP.

Milan, Italy: If the chief justice is absent, who will preside over the court?

Joan Biskupic: The next most senior justice, John Paul Stevens. If he's gone, then it goes down to Sandra Day O'Connor. (That happened at least once.) If she's gone, it would fall to Antonin Scalia. That has never happened.

Silver Spring, Md.: Hi, Joan, great chat.

I read in the most recent Washingtonian that Justice Scalia – against the common wisdom – would retire if Gore wins in November, thinking he'd never have a chance at chief, and that his views would be increasingly marginalized on the court. Any truth to this in your eyes?

Joan Biskupic: No. In the last couple of years, I've seen that speculation in our local mag and in George (just a brief item there) and it makes absolutely no sense. Scalia appears to love his job. He is obviously intellectually stimulated by the law. He hasn't been marginalized in recent years... his "side" prevails on the federalism issues and plenty of the social policy questions. Three years ago he had some strong dissents, in the VMI case, the gay rights one out of Colorado and a couple of others. At that time, I thought he sounded frustrated and angry. But I never thought he would retire before his time. He's only 64 (just had a birthday on the 11th) – a spring-chicken in Supreme Court life.

Washington, D.C.: Do you think both Bush and Gore see nominations to the bench as an opportunity to make a statement on race in this country? It's long been said that everyone's looking for a Hispanic judge for the court. Is that what we should expect?

Joan Biskupic: Yes, I think both would consider it an opportunity to highlight the importance of racial diversity, and Hispanic groups have long been pushing for a Hispanic appointee. So, I'm sure that will factor into the mix. BUt so will pressure to name a woman or someone who is disabled or someone who represents a certain other constituency or ideology that was important in the election ... I think whoever is president will look for a smart, qualified jurist, but politics will definitely color the selection.

Rockville, Md.: What outlook do you think Judge Easterbrooke would bring to the court and how do you feel he would interact-work with someone like Scalia or even O'Connor?

Joan Biskupic: Good question. I was hoping someone would ask details about these names, which to many of our readers mean nothing. Frank Easterbrook has been on the Chicago-based 7th Circuit since 1984, appointed by Reagan. He went to the University of Chicago law school and worked in the solicitor general's office. I think he would be very much aligned with Scalia than O'Connor, as a general matter. He has a bold approach, as Scalia does. He recently authored the 7th Circuit's decision ruling that so-called partial birth abortions can be banned. ... He's a leading light of the right but I think an Easterbrook nomination is a very long shot.

Boston: Who were Carter's appointments?

It seems to me that the court is at a crossroads right now – poised to either make a major civil rights breakthroughs (in gay rights, for example) or depending on the new nominees, may be heading toward a massive roll-back. Do you think Bowers v. Hardwick would be re-affirmed by the current court? What are Scalia and Thomas's views on the subject?

Joan Biskupic: Alas, Jimmy Carter is the only modern-day president who didn't get a high court nomination. He had plenty of lower-court ones, of course (including Ginsburg and Breyer, who ended up on the Supremes). And you're right about the court being at a cross-roads on gay rights issues. Watch for the case in April over whether the Boy Scouts can fire a scoutmaster for being gay. ... I don't believe Bowers v. Hardwick (a 1986 decision upholding a Georgia sodomy statute, as used against private homosexual conduct) would be affirmed today. I don't necessarily think the court will ever have to rule on it (most of those statutes are being taken off the books by legislatures or state court rulings). As to Scalia and Thomas, they would probably be the justices least likely to want to overturn Bowers v. Hardwick.

Boston, Mass.: Besides Roosevelt and his move to "pack the court," which president do you think has had the most lasting impression on the judicial system and laws in this country?

Joan Biskupic: Ronald Reagan and his appointees have had a significant effect. The Reagan administration made a concerted effort to find nominees who embraced its conservatism and worked hard to get them approved. Reagan and his aides understood well that one of a president's most enduring legacies is his court appointments. Remember, these people are appointed for life.

Hampshire, Ill.: What impact do you think the Supreme Court's upcoming decision in Troxel v. Granville (parent's rights) will have on other areas of family law, such as, the sua sponte court appointments of guardian ad litems in divorce proceedings? I'm seeking to have the guardian ad litem statute declared unconstitutional for reasons essentially identical to Ms. Granville's: the unlawful state intrusion into the private realm of parent and child with the guardian having no responsibilities to my children. I've been doing this pro se over the last six years and, finally, the case is before the Illinois Appellate Court with oral argument expected soon.

Wes B.

Joan Biskupic: It's hard to say. This court tends to rule narrowly. BUt the case does test definitions of family, parental control and who can challenge a mother's or father's child-rearing decisions – questions that seem at the forefront of your case. The Troxel disputes focuses only on the visiting rights of third parties, here, grandparents.

D.C.: Regarding Vermont, the state is setting up a civil unions system to be parallel to – but not "equal" to – laws governing heterosexual marriage.

Since it's obvious that civil unions are meant to provide the rights and responsibilities of heterosexual marriage to same-sex couples, couldn't this be seen as a "separate but equal" kind of case? In other words, if civil unions are supposed to provide ALL legal aspects of marriage to gay couples, but is administered on a separate legal basis, could they one day go to the Supreme Court and argue that "separate but equal" is unconstitutional and ask Vermont simply to allow gays and lesbians to marry?

Thank you.

Joan Biskupic: The Constitution guarantees equal protection of the laws, but that is not an absolute guarantee. The Supreme Court allows government to draw all sorts of distinctions, if there's some rationale basis. .... However, government can separate people on the basis of race only if there's some "compelling" reason – the toughest standard to meet. If gender is the issue, government needs an "exceedingly persuasive" reason for allowing men to do something that is forbidden to women. Discrimination based on sexual orientation has never been squarely tested at the court. In 1996 when the justices struck down an amendment to the Colorado state constitution prohibiting laws that would protect gays, the justices said the amendment lacked a rational relationship to any legitimate state interest and seemed motivated only by animus. The line between heterosexual and homosexual marriages is so much a part of American tradition that it won't fall as easily.

Virginia Beach, Va.: Come now, we don't really think Clinton appointed "centrists" and Reagan and Bush appointed hard core conserv's do we?

Clinton appointed a former ACLU attorney with a nice liberal bent -Ginsburg- and tried to appoint a justice who had some very liberal views on race and voting.

Let's be honest – Clinton is a liberal and he will appoint liberals if he can get away with it – Ditto and reverse for Bush.

Joan Biskupic: Everyone's entitled to a viewpoint.

Washington, D.C.: I agree that the Reagan appointees have had a significant impact on the law. But I still think that the Eisenhower appointees (Warren and Brennan's) contribution is more significant. Two steps forward and one step back is still one step forward.

Joan Biskupic: And here's a comment from the other side, clearly happy with the liberal vigor of Warren and Brennan... You make a good point about the legacy of a single Supreme Court justice. When I was answering the earlier question, I was thinking about all of the Reagan appointees and how they have overall changed the bench.... I wonder if you, reader, would agree, with the previous writer's suggestion that Clinton's appointees in are in liberal mold of Warren and Brennan.

Pittsburgh, Pa.: Is there any Supreme Court ruling prohibiting criminal prosecution of a sitting president? If not, why was no prosecution for perjury brought after a Court found, as a fact, that Mr. Clinton intentionally and knowingly testified falsely and submitted false and misleading sworn answers to discovery requests?

Joan Biskupic: That's a question that has never been tested at the high court .... although we might have gotten close to it with this administration and the Whitewater prosecutor ... The questions obviously raises lots of constitutional and practical significance. But in Clinton's case, after the impeachment drama, it now seems besides-the-point.

Silver Spring, Md.: How many more judicial nominees of President Clinton will be confirmed by the Senate before he leaves office?

Joan Biskupic: At this point, a very few, and only those without major political problems. THe window is all but shut.

Joan Biskupic: That's it for today. Thanks to all who joined in. And if any of you want to know more details about potential nominees and who's pushing them, such as Luttig (a young Bush appointee and protege of Scalia) or Tatel (a Clinton appointee on the D.C. Circuit who happens to be blind)... we'll be revisiting the topic as the campaign continues this summer. Next week, "Holding Court" will be live from the Supreme Court press room, and we'll take up a subject that draws continual questions here, about the press, access to the justices, why some cases get covered, why others don't. Thanks to all. Happy St. Patrick's Day!

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